Why Apple's Battle with the FBI Case Could Go to Congress

Is it time for the government to narrow the scope of the All Writs Act?

Apple will reportedly attempt to bring the San Bernardino iPhone case from the courts to Congress. Apple has until Friday to respond to Judge Pym’s court order, an order that compels Apple to assist the FBI.

If Apple’s response indeed suggests a change of venue, it’s reasonable to deduce that Apple thinks it will otherwise lose the court case. If Apple does lose the court case, then it would likely enlist a congresswoman or -man to propose a bill that aims to reform or repeal the statute upon which the government rests all such cases: the All Writs Act of 1789.

Way back in 1789, George Washington signed the bill into law. Federal judges could now issue “writs” — formalized orders, not unlike your boss’s “suggestions” — when the court had exhausted alternative means of jurisdiction. But in ensuing centuries, the bill took on a broader scope. In other words, it became a crutch: whenever there were no laws by which to effect the desired result, a judge could issue a court order and invoke the All Writs Act. (Would that I could invoke an All Writs Act: I hereby compel my employers — due to the absence of any applicable law — to issue me no further assignments on Fridays.)

In a lecture on the statute from Stanford University in 2014, the question of whether the All Writs Act could compel a company to decrypt data on a smartphone actually arises:

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In the Apple case, there are no laws at which the government and Judge Pym can point to say “Apple must comply.” Instead, the government makes an argument that, given both the absence of such laws and the gravity of this case, the Honorable Pym ought to just order Apple’s compliance. For the All Writs Act to apply, it must meet some conditions (as stated in the video above); the two most relevant conditions, here, are that it can only apply if justified by “extraordinary circumstances” and if compliance would not entail an “unreasonable burden” upon the third party.

In the San Bernardino case, and elsewhere, Apple’s argued that it would entail an unreasonable burden: compliance would erode the public’s trust in the brand. The government, of course, says both that these are extraordinary circumstances and that it’s not an unreasonable burden for Apple to comply.

If Apple does find a way to get Congress to deliberate over this grey area, then it’s safe to assume that we won’t have an answer for some time to come. White House Press Secretary Josh Earnest, on February 22, responded:

Q: “… Apple has suggested that it would a good idea to have a congressional group, committee, whatever, take a look at privacy issues when it comes to access to phones like this. Does the White House think that kicking it to Congress to evaluate would be a good idea?”

A: “I haven’t seen a clear description of what exactly they have in mind. Again, I’ll just sort of make the observation that I have made in a variety of other settings — that sending complicated things to Congress is often not the surest way to get a quick answer …

“But, look, there’s also a responsibility that Congress has here to weigh in and to help the American people protect themselves from cyber threats. The President included in his budget a substantial investment in upgrading cybersecurity not just of the government but also for the private sector and for individual citizens.

“And again, we saw the Republicans in Congress refuse to even discuss that budget proposal with the President’s budget director. So I don’t know if Apple would receive the same kind of reception on Capitol Hill, but I think it’s a pretty clear indication that Congress is not particularly interested in discussing that issue.”